A uniform criminal law is not appropriate for increasingly fragmented societies. People hold divergent and incompatible views on the purpose of criminal law, and on what penalties should apply. That is reflected in emotional controversy about the death penalty, and about specific crimes such as rape. Am up-to-date constitution should therefore provide for customised laws.
Customisation can take the form of elective penalties. Individuals would be able to decide what penalty should apply if they are the victim of a crime, and consequently the degree of protection that the law provides. To some extent that would allow them to choose between principles such as retaliation, deterrence and rehabilitation, in the criminal justice system.
The death penalty is typically the most emotive criminal justice issue. An elective death penalty for murder would require that each adult specify the penalty for their own murder. In countries which had abolished the death penalty, the default option would be no death penalty.
Adults who preferred the death penalty for murder, would register that preference with a government agency, probably the Justice Ministry. They would then make that preference known to the public. If they were subsequently the victim of intentional homicide by a person who was aware of their preference, that person would be executed on conviction for their murder.
In this system, the victim decides the penalty, prior to the crime. It is however logical that a person who opts to be protected by the death penalty for murder, should themselves be subject to the death penalty, if they themselves commit murder. In that last case, victim preference would be ignored.
Making the preference public is the most difficult part of the process. Transparency is desirable in law, and that implies knowledge of any customisation of law. In any case, those who opt for the death penalty will typically seek additional deterrence. To be effective, deterrence requires prior knowledge of the consequences of a crime, including the possible penalty.
An elective penalty for a crime against a natural person must therefore be publicized, in way that is specific to that person. It must also be unambiguous. The most obvious method is by the clothing of the individual. That could mean, for instance, that the individual wears a fluorescent jacket on the street, with the clear warning “Protected by the death penalty against murder”.
Many people will find that absurd or horrifying. There are alternatives is the sense of widening the scope beyond the body of a single person. It would be possible to extend protection to a vehicle, meaning that the death penalty would apply to murder of its occupants, even they were forcibly removed from the vehicle. In that case the vehicle would carry a prominent warning: “Occupants protected by the death penalty against murder”.
A further extension of the principle is to allow the managers of buildings to opt for the death penalty. Usually that would be at the request of its occupants – students or employees, for instance. As with the vehicle, the death penalty would apply to murder of those occupants, even they were forcibly removed from the building.
This option would only be reasonable, if the occupants or users of the building had all chosen to opt for the death penalty. In practice, an organisation (school or employer) would apply to designate a building, as protected by the death penalty. Prospective students or employees would be notified of its status, before using it. Note that this allows larger organisations to operate different regimes at different locations: one office could be death-protected, and others not. Clear prior notification would be necessary, including prominent and unambiguous warning signs at the location itself.
A related extension of the principle is that families could opt for the death penalty to protect them in their home. In that case, the adult members of the household would need to concur: parents or guardians would choose for their children. Again the home would carry prominent warning signs: “Home and family protected by the death penalty against murder”. Note that adult family members would themselves be subject to the death penalty, if they murdered another family member in the home – which is a common pattern of murder. Additionally, if an adult member of that family went to some other family’s house, and murdered a member of that family, they too would face the death penalty.
Obviously, the principle of an elective death penalty is not restricted to punishment of intentional homicide. Some feminists advocate the death penalty for rape, which they define very broadly. Some non-feminist conservatives also advocate that, but they are more likely to mean ‘classic’ rape – violent assault by a stranger. Even if the term ‘rape’ is no longer appropriate for the criminal law, due to inflationary definitions, it is still possible to consider elective penalties. The elective procedures could be varied, and adjusted for different types of sexual assaults.
As with the elective death penalty for murder, individual women could choose that the death penalty should be imposed on a man who rapes them. They could indicate that by specific clothing, which might have a deterrent effect in public spaces. Given that most sexual assaults are not sudden attacks by strangers in public places, other procedures are more appropriate.
Firstly, women could choose that the death penalty apply to rape (or any sexual assault) in their residence, even specifically in their bedroom. That should act as deterrent for rape by partners, and ‘date rape’. Educational establishments could opt for the death penalty, committed against their students on their premises (that could mean a whole campus). Although it is not an absolute guarantee, it would go a long way to creating a rape-free school or university. Again, students would need to be notified of this policy before enrolment, and again, prominent warnings would be needed. It is easier to put warning notices on a specific house or apartment, or a specific educational building, than on an individual person.
These are a few examples: there are many other options for elective penalties in the criminal law. The reason to introduce an elective death penalty is simply, that some people want the death penalty while others oppose it. The typical legal structures of the nation-state allow no choice in the matter: either the death penalty applies in the whole country, or is abolished in the whole country. It is a variant of cuius regio eius religio, with no room for individual conscience. Arguments about the morality of the death penalty itself are irrelevant here: there is no consensus on that issue. The political fact is that the population is divided, and elective penalties are a response to that fact.